Officials’ Facebook posts remain a public records grey area

With avenues of communication expanding in our increasingly-connected world, the boundaries between private and public life have become increasingly blurred, an evolving issue for the keepers of the public records who must determine which materials must be archived and which may maintain their privacy.

Recently, The Oregonian covered the case of Portland City Commissioner Chloe Eudaly, whose private Facebook postings on Council goings-on have drawn criticism from constituents and the state archivist. It’s become accepted that particular Facebook configurations fall under public records laws - Pennsylvania, for one, has ruled in favor of disclosure when it comes to a mayor’s Facebook posting on public matters, and New Jersey follows similar guidelines.

In fact, in general, a strong argument can be made that any record of any sort created by a public official relevant to public work is itself a public record. This includes emails, texts, Twitter DMs, and Facebook messages - as long as they have something to do with the activities of the municipality or government for which the individual serves.

But an added obstacle to their appropriate retention lies in the fact that these city business-related materials aren’t necessarily accessible by other city employees, and public records laws will often provide a pass on materials that aren’t actually in the agency’s possession. This came into play in a big way on the federal level when former Secretary of State Henry Kissinger’s notes were transferred to the Library of Congress and became inaccessible upon request to the State Department; the courts in Kissinger v. Reporters Committee for Freedom of the Press agreed that an agency couldn’t compel the transfer of materials. And in some places, like Arizona, though the law explicitly states that those private communications relevant to public business are public, the responsibility falls on the officials themselves to retain and provide such materials to the agency.

As this issue continues to develop, MuckRock would like your help learning about your municipalities’ policies around privately-conducted, publicly-related social media posts. Please let us know if you’d like us to request your town’s policies on retaining and releasing officials’ Facebook content, if you’ve heard of a similar conflict near you, or if you have any thoughts on where to draw the line between public and private content.